HKSAR v. Chan Kim Hung

HCCC 20/1995

[2018] HKCFI 2307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 20 OF 1995

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

Chan Kim‑hung pleaded guilty to an indictment and pleaded guilty to 4 out of the 5 counts on that indictment as it then stood. The indictment alleged, on the 9 and 10 September 1994, in a room in a hotel in Happy Valley, he robbed a person who will be known throughout these reasons as Ms X.

The 2nd count on the indictment to which he pleaded guilty was the false imprisonment at the same location, the false imprisonment of Ms X.

The 3rd count on the indictment to which he pleaded not guilty was the theft of the credit balance of an account with the Hang Seng Bank belonging to Ms X.

Further, Mr Chan pleaded guilty to a charge of raping Ms X on 10 September 1994 at the premises in Happy Valley.

He was also charged, as we know, with failing to surrender to custody without reasonable cause. This count alleged that he, being a person admitted to bail, without reasonable cause, failed to surrender to custody.

In relation to the 3rd count on the indictment, the prosecution offered no evidence and the accused was, in that regard, acquitted and discharged.

Since Mr Chan pleaded guilty to the 5th count on the indictment, that is, the offence under Section 9L of Criminal Procedural Ordinance, Cap 221, alleging that he, being a person, admitted to bail, failed to answer his bail at the appointed time without reasonable excuse, it had been discovered that the offence, despite being an act that on 23 June 1994, the legislation creating the offence did not come into force until September 1995, which is, of course, many months after the date of the offence. Accordingly, the offence under Section 9L averred in the 5th count in the indictment is an offence not known to the law.

In the circumstances, the appropriate approach is to permit the accused to withdraw his plea, vacate the conviction which I ordered following the plea, and discharge the accused from the obligation to answer that count on the indictment. That course has been adopted and that now forms part of the record of this case.

Admitted facts/Background

The indictment in this case was originally preferred against Mr Chan and a second person, Mr Wong Wing‑tak. The trial of this earlier indictment was to commence in 1995.

On 18 January, Mr Chan was granted bail by the late Mr Tong Man, sitting as a permanent magistrate in the Eastern Magistracy. The grant of bail had followed his committal for trial to the High Court. The terms of the bail appear to have been that Mr Chan was granted bail on deposit of $50,000 cash and a $50,000 surety, also in cash.

Ultimately, Mr Chan was admitted to bail conditioned on his appearance at the High Court on that date and conditioned on attending pretrial reviews. Mr Chan failed to attend the pretrial review before Deputy Judge Bokhary (as she then was) on 23 May 1995 and a warrant of arrest was issued. The co‑defendant, Mr Wong, was tried before Deputy Judge Longley and was convicted on that indictment and sentenced to a term of imprisonment. I should add that the charge of rape was not alleged against Mr Wong and he was not convicted of that charge.

Mr Chan left Hong Kong. He returned on 11 January 2018. On that day, at Hong Kong International Airport, he arrived on a flight from Thailand. Under caution, he explained to the authorities that he had left Hong Kong and spent time in mainland China and Thailand and that he had done so out of fear of being jailed.

Events on 9 and 10 September 1994

Ms X was a hostess at a night club known as Today’s World Night Club, situated in Causeway Bay. Chan was a patron of the club and on 9 September 1994, Ms X agreed to provide escort services for Mr Chan at a fee of $1,700 and sexual intercourse would be included in that price. For that purpose, they went to the Richmond Hotel in Happy Valley and arrived sometime after 9 pm. After they registered at the hotel, room 1603 was assigned to them. They proceeded to that room and Chan made some phone calls there.

After 10 pm, there was a knock on the door of the hotel room. Mr Chan opened the door and his former co‑accused, Mr Wong Wing‑tak, appeared at the door. He was admitted to the room. At the time he was admitted, he was wearing a ski mask over his head. Mr Wong slapped Ms X on her face and pushed her down onto the bed. Ms X, with her face down on the bed, was told to keep quiet by Mr Chan as Mr Wong pressed the pillow against her head forcefully. Mr Wong then used some ropes to tie up the feet of Ms X. He also used adhesive tapes to bind her hand and cover her mouth.

The men then helped Ms X up and pushed her into the toilet of the hotel room. The telephone in the toilet was unplugged. Ms X was able to see that Chan searched her handbag and took out her wallet. Mr Wong asked Ms X for her phone number, pager number, address. He then rang the numbers to verify the information that was given by Ms X was correct. Following that, Mr Chan and Mr Wong permitted Ms X to use the toilet.

Mr Chan took from the wallet of Ms X a credit card and one Hang Seng Bank ATM card and asked for her PIN numbers. Ms X could only provide that for her ATM card. Having obtained the PIN number, Mr Wong left the hotel room and then used the ATM card to withdraw $400 in cash. Ms X was continuously detained in the room.

While Mr Wong was away, Chan locked the room door. Ms X was sufficiently scared that she did not speak or attempt to flee. Mr Wong came back later without wearing the ski mask that he had worn earlier. He returned the ATM card to Ms X. He then took the Citibank gold credit card and Hong Kong identity card of Ms X and left again, leaving Mr Chan to guard over her. Mr Wong said that he would visit Macau to use her credit card there. Around midnight on 9 September 1994, Mr Chan said to Ms X that he was tired, he tied up the hands and feet of Ms X and once again taped her mouth.

At about 2 am on 10 September, Mr Chan told Ms X that he was bored. He led Ms X to the bed, loosened the ropes on her hands, removed the tie on her feet and untaped her mouth. He then unbuttoned her dress, commenced to fondle her breasts. Ms X asked Mr Chan to stop. Chan then said to Ms X, “You will not say no when you get $1,700.” Ms X told Mr Chan loudly that because he had robbed her, she would not like to be touched and she refused to have sex with him. She was crying at the time. Chan silenced her with his hand. Ms X says she was scared and did not put up any resistance or anything further, then was totally undressed and Mr Chan then undressed himself. He kissed Ms X on her breasts and nipples during the course of such an assault. She was too frightened to say no or to do anything to resist.

Mr Chan put on a condom and penetrated Ms X forcibly. Ms X said that in the course of the penetration, she felt great pain. She said that the penetration was against her will. Mr Chan then had sex with Ms X for about 30 minutes. In the course of that sexual intercourse, Ms X continued to feel pain. And after about 30 minutes, Mr Chan ejaculated, removed the condom and flushed it down the toilet.

After the sexual intercourse, Mr Chan removed the ties of the hands of Ms X and asked her to dress, then ordered her to return to the toilet, tied her hands up again, took her Rolex watch that she was wearing. Mr Chan left the hotel about 3.15 am, following the receipt of a phone call. He told Ms X that he would give her money for the sexual intercourse. He then left. After 15 minutes after he left, Ms X managed to untie herself and went home. At that juncture, she called her boyfriend and told him what had happened. A report was then made to the police.

Following items were taken from Ms X in the course of the robbery in the room in the Richmond Hotel: Citibank Visa gold card, a Rolex watch, Hong Kong identity card, $100 in cash and an MTR ticket.

On 10 September 1994, Ms X was examined by a forensic pathologist. The findings of the pathologist were an area of reddish, thumb-type bruises, 2 centimetres by 1 centimetre, below the right eye with no other recent injuries. In relation to her private parts, the doctor found hymenal remnant was irregular from 3 o’clock to 8 o’clock position, no recent injuries and the vagina could admit two fingers.

Ms X, on 13 September 1994, viewed the CCTV tapes of the Richmond Hotel and identified both Mr Chan and Mr Wong. Mr Chan was arrested by police on 6 October 1994 at the doorstep of a hospital. He denied raping Ms X. Later on, on 6 October 1994, he was interviewed under caution by the police and told them the following:

(1)That he and Mr Wong were once auxiliary police officers and he had known Wong since 1996. (2)On 9 September, he arranged to see Wong at about 7 pm. They went to the Today’s World Night Club, with Mr Chan going into the club and Mr Wong staying downstairs. (3)Chan took out Ms X for an agreed fee of $1,500, which was never paid. He says they had dinner together before going to the Richmond Hotel and they arrived at the hotel around 10 pm.

(4)In the hotel, Chan paged Mr Wong and he called Mr Wong to come to room 1603. (5)He and Mr Wong had a prior discussion. The arrangement was that Chan would look for a “wealthy target” in the night club and ask her for escort service. He and Mr Wong would then rob her together. (6)Wong arrived 45 minutes after when Mr Chan and Ms X arrived at the hotel. The plan was that Wong would say to Ms X that she had offended his boss and that he was now in need of money and wanted her assistance.

Mr Wong then looked into the handbag of Ms X and found two bank cards, demanded the PIN number from Ms X and would tie up Ms X with a rope. (7)After obtaining the PIN, Mr Wong went to withdraw money and he was only able to withdraw $400.

(8)The eighth point was that Wong then suggested to use the credit card of Ms X to buy gold ornaments in Macau and sell the same afterwards. (9)Mr Wong then left for Macau, Chan stayed behind to guard Ms X. (10)After Wong left, Chan took away Ms X’s Rolex watch. (11)Chan met Wong in the early morning of 10 September, Wong brought back some of the gold ornaments to Hong Kong which were later sold and the Rolex watch that Chan had taken was pawned. (12)Chan’s total share of the proceeds of the robbery was $14,000.

(13)Following Wong leaving for Macau, Chan said to Ms X words to the effect that they have already agreed to have sex for $1,500 so they should now have sex and Chan would repay her later. (14)He says that the sexual intercourse with Ms X was with her full consent.

(15)After the intercourse, Chan received Wong’s call. He said he would not join Chan at the hotel and Chan therefore tied up Ms X and left. (16)Chan told police that he told Ms X that he would send back the credit card and identity card by post. And as for the $1,500, he would deposit money in the bank account and asked for her address and bank account number. (17)He asserted that to the police that he really wanted to give her the 1500 but he lost the slip with the account number on it.

A further statement under caution was given on 7 October 1994. In the interview, Mr Chan reiterated that he would give Ms X $1,500 when Wong returned with the money. He also said that X asked him how much money Wong would give to Chan, and he said it was at least $2,000. Chan said to the police that he and Ms X should have sex first and he would repay the money later. Chan said to the police that X agreed to his suggestion. She told him to untie herself first and then he would use a condom, which he found in her handbag. The condom came from the handbag, he said that he untied Ms X, took off her clothes and then took off his own clothes, invited Ms X to shower but she declined to do so. He said the sexual intercourse took place for about five minutes with her consent. Following the sexual intercourse, he tied her up to a chair because he was worried that Ms X might escape. The condom was flushed down the toilet.

On investigation, the police found on 9 September 1994, that Mr Chan had arranged for four hostesses to serve him one after the other. One of those hostesses had attended an identification parade on 7 October 1994. The fingerprints and palm prints of Mr Chan were found on the registration form of the hotel and on the bedside table of room 1603 respectively. Wong departed Hong Kong on 10 September 1994 at 12.14 am and returned at 5.16 am the same day. Between 1.43 am and 3.36 am on 10 September, the Citibank Visa gold card of Ms X was used for five transactions in Macau. The total value of those transactions was just over $30,000.

Mr Chan is now 51 years of age. He was born in 1966 in Hong Kong. He was educated to Form 5, and prior to the conduct the subject of this indictment, he worked as a mobile phone sales agent in Hong Kong. Prior to this offence, his health was good, he was a single man. Mr Chan has one previous conviction for a theft in 1994. Judging by the penalty imposed, it is likely that the offence was a comparatively minor one and I do not propose to take it into account for the purpose of sentence.

In mitigation, I was told that he provided to the police details of his confederate’s particulars with a view to assisting the police to arrest him. I do not know to what extent, if any, the information was of value to the police in arresting Mr Wong. To the extent that such cooperation shows an element of remorse, in my judgement, it is wholly offset by Chan leaving Hong Kong and not facing up to his responsibilities.

After Chan left Hong Kong, and I am told he went to mainland China, by 2014, he was working in a church on the border of Thailand and Myanmar. Through his counsel, Mr Chan told me that he was inspired by his work at this church to adopt the Christian faith. A principal consequence of that was that he was persuaded to some degree that the time had come for him to face up to his responsibilities in Hong Kong. It appears that in 2017, Mr Chan resolved to act in accordance with his conscience because he contacted the Thai authorities and informed them that he was wanted in Hong Kong. I was told that the consequence of this was that he spent about 8 months in custody prior to arrangements being made for his rendition to Hong Kong and for his surrender to the Hong Kong authorities at Hong Kong International Airport.

I use the word “rendition” in a somewhat generic sense because there are presently no arrangements with the Kingdom of Thailand under the Fugitive Offenders Ordinance, Cap 503, and as a consequence of that, the arrangements, if any, between the Thai authorities and the Hong Kong authorities must have been on an informal basis. (Under the Fugitive Offenders Ordinance, section 3 provides that arrangements for the surrender of fugitive offenders may be made between a place outside Hong Kong (such as the Kingdom of Thailand) with the concurrence of the Ceutral People’s Government for the surrender of fugitive offenders.) More pertinently, I was not informed upon what basis Mr Chan was detained by the Thai authorities. I do not know whether, for example, Mr Chan had a right to be in Thailand. I mention all of this because there is authority which would suggest that under certain circumstances, the sentence imposed in Hong Kong might be adjusted to take account of time spent in detention in another place. On any view, this would not be an appropriate case to make such an allowance.

. All of that said, I am prepared to accept that Mr Chan is now remorseful for his conduct and that his return to Hong Kong was, in the circumstances, evidence of that remorse.

Proceedings in this court in relation to Mr Chan

Following his arrest on 11 January 2018, the indictment was relisted for trial under the High Court. A pretrial review was held on 25 June 2018. At that stage, counsel for the accused indicated to the court that his client would plead guilty to the robbery but not guilty to the rape. Further correspondence was received about the admissibility of certain statements attributed to Mr Chan, and on 9 July, the court was informed that the admissibility of the statements under caution was not now challenged. Finally, on 24 July, the court was informed that the accused would plead guilty to all counts against him.

Prior to notification on 24 July 2018 of the plea of guilty, it would have been necessary, on the depositions in the case, to call Ms X and to rely on the statements made under caution. Ms X had already testified at the trial of Mr Wong in 1995. The notes of proceedings for that trial reveal that at least she was spared the ordeal of having to recount the rape event which ceased to be relevant once Mr Chan failed to answer his bail. Nevertheless, she was not to know that until the commencement of the trial.

In relation to the proceedings on the present indictment, the records reveal that Ms X was sent a witness summons. It is clear, of course, that she did not actually have to give evidence of the rape at the end. But it is reasonable to infer that it cannot have been an easy thing to face up to the prospect of testifying about an event more than 25 years later of a nature of this one. Fortunately, as I say, she has been spared the ordeal of having to testify in the present trial as a result of the plea of guilty of Mr Chan.

Sentencing considerations

Basic matters. Mr Chan falls to be sentenced on the sentencing approach applicable at the time of the offence in September 1994.

Robbery

Robbery is an offence by Section 10 of the Theft Ordinance. The maximum penalty is life imprisonment. A person commits robbery if he steals and immediately before or at the time of doing so and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force. The authorities germane to robbery applicable in around 1994 and 95 concerned robbery with a weapon. In that regard, the leading authority is The Queen v Mo Kwong Sang [1981] HKLR 610. This case set the guidelines for armed robbery.

Manifestly, this case was not an armed robbery. However, some of the observations of the Court of Appeal, which comprised Roberts CJ, Leonard and Li JJA, are highly pertinent to the present case. This was a robbery in private premises. It occurred when a person was lured to these premises by a false pretence. It was clearly premeditated and involved a joint enterprise between the robbers. The victim was deliberately selected. The robbers were male and the victim female. Violence was inflicted on the victim. She was slapped and forced down. She was bound and, at various times, gagged. Gagging exposes a person to the additional danger if that person, as might be expected in some cases, to panic. Luckily, that did not occur in this case.

The belongings of the victim were ransacked and her identity card and certain credit cards or ATM cards were taken and the credit card was used in Macau to purchase gold ornaments to something of the order of $30,000 being used up in that endeavour. The Rolex watch was taken. No value was ascribed to that but it would be idle to conclude otherwise that this was a valuable item. Mr Chan admitted that he received $14,000 as his share in the robbery. Strictly speaking, the realisation of taking the credit card is not of itself robbery. That is handling stolen goods, an offence with which Mr Chan is not charged. Nevertheless, the value of the credit card taken in the robbery is not of course that it is a piece of plastic but it has the potential to obtain cash, services or valuable items. In the result, valuable items were acquired.

In strict law, Mr Chan cannot be punished for that which he is not charged. But it would be idle to deal with him upon the basis that all he done is been a party to a taking of a piece of plastic. And anyone would realise what great potential value, and the fact that it did realise goods of substantial value is simply proof of that fact.

If this had been a robbery in which the perpetrators were armed, in this combination of circumstances, it would, on the analysis of HKSAR v Mo Kwong Sang (above), have attracted a sentence of the order of 8 years’ imprisonment. Scaling that back to remove the armed component of such analysis, might reduce the sentence to something of the order of 6 years. I am aware that Chan’s confederate, Mr Wong, was sentenced to 5 years’ imprisonment for his part in the robbery. He left on his venture to Macau to use the credit card of Ms X, leaving Mr Chan with Ms X.

The Rolex watch was taken after he, Mr Wong, left and it is clear that the robbery continued over a protracted period for which Mr Chan is responsible. He is not solely responsible because Ms X was kept in a room for a substantial time before the Rolex watch was taken and that conduct can be subsumed in the penalty for false imprisonment. Nevertheless, the taking of the Rolex watch was solely down to Mr Chan and it seems to me to appropriate fix the starting point for his sentence at 5 years and 6 months.

False imprisonment

False imprisonment is an offence at common law carrying a penalty of 7 years’ imprisonment. The offence consists of the unlawful and intentional or reckless restraint of a victim’s freedom of movement from a particular place. It is unlawful detention which stops the victim from moving away as he or she would wish to move. The detention must be without the consent of the victim. (Archbold Hong Kong 2018, para 20-333.) Guidelines for the appropriate sentence for false imprisonment are, to say the least, elusive. In Secretary for Justice v Yiu Man Chun [2011] 3 HKC 125, Stock VP, was hardly guilty of an understatement when he said:

“The offence of false imprisonment carries a maximum penalty of 7 years. The type of offence with which we are dealing can occur in a wide variety of circumstances that it will often, though not always, be difficult to come across a previous decision that exactly or even roughly matches the facts under consideration.”

In R v Kwok Kai Chun CACC 485/1987, the victim was detained inside a wooden hut against her will where she was robbed. In that case, the imprisonment lasted for something of the order of 12 hours. The sentence for the direct perpetrators of the false imprisonment was 7 years but the Court of Appeal considered that the appellant in the case was deserving of 5 years’ imprisonment because he was guilty on the basis of a joint enterprise and he was not present at the time of the false imprisonment. The implication of that is that the person at the scene actually carrying out the physical acts would receive a higher sentence. The Court of Appeal in that case considered that it would be appropriate in the circumstances for the false imprisonment to run concurrently with the sentence for robbery on which the appellant was also convicted.

In R v Yu Wing Wah CACC 745/1995, the charge of false imprisonment also accompanied the charge of robbery. In that case, the person was robbed with a knife and tied up against his will. The detention in that case was for about 20 minutes. The sentencing court considered that 10 years and 6 months was an appropriate overall sentence. The offence involved robbery in company. Power VP, giving the judgement of the Court of Appeal, observed:

“We accept that there is, to an extent, an overlapping as regards to the aggravating features of each offence. However, they were no overlapping as to the real gravamen of the false imprisonment count, that is, the rendering immobile and the removing the victim from the scene and leaving him in that condition until he was released by the police. The serious features of that offence play no part in the ordinary robbery and not one to which the R v Mo Kwong Sang [1981] HKLR 610 guidelines have application.”

The Court refused to intervene in this level of sentence. Mr Wong, the confederate of Mr Chan, was sentenced to 2 years’ imprisonment for his part in the false imprisonment. As a member of the joint enterprise to rob and falsely imprison Ms X, Mr Wong was liable for sentencing purposes for the acts of false imprisonment which occurred after he left the room for the purpose for going to Macau to use Ms X’s credit card. I have not been able locate any statement of reasons for sentence by the sentencing judge in relation to Mr Wong, Deputy Judge Longley did not say why a sentence at this level was imposed.

In all the circumstances, the sentence strikes me as a sentence which, to put it mildly, is on the low side. However, I readily accept that to impose a higher sentence on Mr Chan might engender in him a sense of grievance based on the disparity of sentence in respect of the conduct for which he is equally liable. Not without some hesitation, I consider it would be appropriate to consider a starting point for false imprisonment of 2 years.

Rape

The maximum penalty for rape is imprisonment for life. Section 118 of the Crimes Ordinance, Cap 200, declares that a man commits rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it, and at the time, he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it. In the present case, while it is probably not technically correct to say that the rape took place in the course of a robbery, it took place immediately following a robbery. In the present case, a further act of robbery took place after the rape.

The victim in this case was a hostess at a night club. She agreed to go out with the accused for the purpose of having sexual intercourse and went willingly to the hotel. The price had been agreed for that sexual intercourse. Nevertheless, a pre‑planned robbery intervened and the act of intercourse, the subject of this indictment, took place some hours after Mr Chan’s confederate had left to convert the victim’s credit card into gold ornaments.

In other words, the rape started when the victim was a still a prisoner of at least Mr Chan. The victim made it plain that she did not wish to be a willing partner to sexual intercourse. She said that she was so frightened that she did not feel she could resist. She has been crying. The penetration was for a long time and painful to her. Mr Chan used a condom.

Ms X is entitled to as much protection of the law as any other woman who does not consent to sexual intercourse. She had been subjected to a frightening experience for many hours prior to the actual act of sexual intercourse. She was, in effect, under the control of Mr Chan. He could not fail to have appreciated that this act of sexual intercourse was against her will and she made it plain that this was the position. It is no mitigation that he used a condom in that it might have been a matter of aggravation if he had not done so.

It is suggested by counsel for Mr Chan that the trauma often associated with rape might be less in relation to Ms X as supposed to another woman. There is of course no victim impact information available. I do not know to what extent, if at all, the violation of the person of Ms X by Mr Chan has had any lingering effect on her. I do not think it is appropriate to speculate in a manner adverse to Mr Chan in the absence of information.

That said, I am certainly not prepared to accept the proposition that rape would affect her less than other females. As I have already said, she, in common with all females, is entitled to the protection of the law from the indignity of rape. The fact that she was working as a hostess and in a night club and was prepared to engage in sexual intercourse for money does not, in my opinion, diminish that right to the protection of the law.

The law is that Mr Chan must be sentenced on the sentencing law and approach that is applicable at the time that these indignities were perpetrated on her. The offence took place in September 1994. By that time, but shortly before the event which is the subject of this indictment, the courts of Hong Kong had turned away from aspects of the guidelines derived from the decision of the English Court of Appeal in R v Billam (1986) 82 Cr App R 347.

In that case, the English Court of Appeal had held that the starting point of analysis in rape cases was a sentence of 5 years, which might be increased for various forms of aggravation identified by that court. Following that decision, the courts of Hong Kong had, for some time, followed R v Billam, including the proposition that the starting point for analysis in rape cases was about 5 years. (See, for example, R v Wong Man-nung CACC 480/1992 and R v Liu Ping Kin [1993] 2 HKC 192.)

However, in July 1994, in R v Sung Kwok Man & Anor [1994] 1 HKCLR 164, it was held that whatever the position might have previously have been, R v Billam was not necessarily to be followed. Giving the judgement of the Court of Appeal, McDougall VP, observed:

“While it is correct to say that in this court, that this court is in respectful agreement with the Court of Appeal in R v Billam (1986) 82 Cr App R 347 as to the relative gravity of various circumstances of rape and the factors which aggravate the crime, it must be borne in mind that the guidelines there laid down as to the proper length of sentence in any particular type of case are no more than general indications of what was considered to be appropriate at that time in England. The courts of Hong Kong are entitled to taken into account local conditions and to pass sentences that vary from those referred to in the Billam sentencing guidelines.”

The Court of Appeal confirmed this approach in R v Lau Yuk Ming [1994] 2 HKCLR 256. That decision was in August 1994. What the courts did not do in R v Sung Kwok Man & Anor and R v Lau Yuk Ming is reject the approach of the English Court of Appeal in R v Billam, that subjecting the victim to certain forms of indignity above and beyond sexual intercourse without her consent might add to the overall sentence.

In the instant case, the victim had undergone a harrowing ordeal for a substantial number of hours, and in the course of that, she was under the control of two men, and later, one man. And despite explicitly making claim that she did not consent to sex, she endured a prolonged, painful experience. Those aggravate the conduct of the accused in relation to the rape. In my judgement, an appropriate starting point is 7 years’ imprisonment.

Overall sentence

In each of the aspects of the conduct identified in the indictment should be viewed individually. In Attorney General v Chan Ming Nam [1994] 1 HKCLR 25, [1993] 2 HKC 230, a case where the victim was raped and robbed, it was held that those sentences should be consecutive. Plainly, that would be subject to the issue of totality.

The false imprisonment is, in one sense, an incident of the robbery. However, the victim was kept as prisoner for a long time and while one member of the joint enterprise, Mr Wong, first converted the ATM card and then the VISA card into property which he and Mr Chan could convert into cash. Ms X was kept where she was kept because, had she been let go, it is reasonable to expect, and more pertinently, it is reasonable for the robbers to have expected that she would immediately notify the authorities of the unlawful taking of her property and take steps to ensure that the ATM card and the credit card could not be used by the robbers.

In that sense, the correct sense, in my view, is that the appropriate treatment of this aspect of the conduct of Mr Chan and his confederate is that he ought to be sentenced consecutively with that. Again, obviously, that is subject to the issue of totality.

For many years, the policy of the courts of Hong Kong is to encourage the entry of a plea of guilty to offences because such a plea reduces the strain on publicly funded judicial resources and also accords to other person waiting to have their cases heard and determined, the opportunity to have that happen perhaps sooner than otherwise might have been the case. The courts do this by discounting otherwise appropriate sentences. These principles were restated in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, [2016] 5 HKC 231, [2016] HKEC 190. These principles are by no means new. Nevertheless, in the judgement of Lam VP, the situation of a person who has been through the system prior to the announcement of HKSAR v Ngo Van Nam was considered the court held, ([2016] 5 HKLRD 1, {2016} 5 HKC 231, [2016] HKEC 190, para 236):

“The revised practice of affording discounts of sentence for pleas of guilty is to be applied only to those who, in future, reach the stages of criminal proceedings identified in this judgment at which revised discounts for sentence for pleas of guilty are identified. So, for example, the revised practice applies to a defendant currently in the magistracy who, in the future, is committed to the Court of First Instance for trial. On the other hand, for example, a defendant in respect of whom trial dates have been fixed in the Court of First Instance who pleads guilty on the first day of his trial is to benefit from the existing practice of affording a discount of one-third from that taken as a starting point of a sentence.”

While it may not be that the court in Ngo Van Nam had precisely the situation which arises in this case in mind, I think it is appropriate to adapt the last sentence of this paragraph of the judgement and accord to the accused a one‑third discount for pleading guilty.

Calculation

On the basis of the position outlined in earlier in these reasons, the starting point reached on account on the indictment is as follows: Robbery, 5½ years. False imprisonment, 2 years. Rape, 7 years. If these sentences were to be consecutive, the totality would be a very large one and I think that totality would be too great, even though each of the sentences are individually wholly merited.

In my judgement, an overall sentence on the basis of a starting point of 12 years would be appropriate and I propose to achieve that result as follows:

The sentence for the robbery and the false imprisonment are to be wholly concurrent. The sentence for the rape to be concurrent as the first 6 months thereof, and the balance to be consecutive as to the other sentences. That, on my calculation, provides a starting point of 12 years.

To that starting point, I have applied a discount of one‑third.

Doing the best that I can to combine justice and mercy, the sentence of this court is that you be imprisoned for 8 years.